Ad Dig. 12,2,37ROHGE, Bd. 3 (1872), S. 323: Voraussetzung des wegen der Eideszuschiebung zu verlangenden Calumnieneides.Ulpianus, On the Edict, Book XXXIII. If the oath has not been waived by the party who tendered it, and no oath has been taken denying that proceedings have been instituted for purposes of annoyance, the action will not be granted in consequence; for he has only himself to blame who proceeded to tender the oath before the denial that annoyance was intended was sworn to, so that he is in the same position as if he had dispersed with the oath.

The Same, On the Edict, Book XXXII. If a female slave should give property, as dowry, to a male slave, and afterwards, during their marriage, both of them obtain their freedom, without being deprived of their peculium, and continue in the marriage relation; the matter will be arranged in such a way that if anything remains of what was bestowed as dowry while they were in servitude, it will be held to have been tacitly converted into dotal property, so that the appraised value of the same will be due to the woman. 1Where a woman marries an eunuch, I think that a distinction should be made where he has been absolutely castrated, and when he has not, for if he has been absolutely castrated, you may say that the dowry does not exist; but where this has not been done, for the reason that marriage can exist, the dowry is valid, and an action to recover it will lie.

The Same, On the Edict, Book XXXIII. Where a father gives the dowry, or a stranger who does so contracts for it subject to a certain contingency, as for instance, if a divorce or death should take place, it must be said that the woman will, in any event be entitled to the action which was not mentioned in the agreement. 1If, after the marriage has been dissolved, the wife, being under paternal control, uses up the dowry jointly belonging to herself and her father without the consent of the latter, the father will be entitled to an action to obtain the delivery of the dowry to himself, whether his daughter be living or dead. This rule also applies where the dowry is given to a woman who is likely to waste it. If, however, it was given for good reasons to one who will not be likely to squander it, no action will lie, and after the death of the father, neither his heirs nor the woman can institute proceedings to recover it. 2If, after the marriage has been dissolved, the woman, having been deceived, accepts by novation a debtor who is insolvent, she will, nevertheless, be entitled to an action on dowry. 3Where a father, during the absence of his daughter, institutes proceedings to recover the dowry, even though he fails to give security for the ratification of his act, the right to sue should be denied the daughter, whether she becomes her father’s heir, or whether she receives from him, by way of legacy, an amount equal to her dowry. Therefore, Julianus stated in several places, that what was given her by her father should be set off against her dowry, and that it would be to her profit if she received as much from him as was due from her husband as dowry, and which he had paid her father. 4If the father should not be permitted to remain at Rome, where the suit is brought for the dowry, on account of some sentence imposed upon him, the amount of the dowry must be paid to the daughter, provided she furnishes security that her father will ratify her act. 5It is necessary for the daughter to give her consent to her father bringing the action, at the time when issue was joined. In accordance with this, if she says that she consents, and, before issue is joined she should change her mind, or even be emancipated, the action brought by her father will be of no effect. 6We also agree with Labeo that sometimes an action should be refused the father, if his character is so degraded that it is to be feared that he will squander the dowry after receiving it; therefore the authority of the judge should be interposed, as far as he can do so, to protect the best interests of both daughter and father. If, however, the daughter conceals herself in order to avoid giving her consent to a father of this kind, I certainly think that an action should be granted the father, but only after proper cause has been shown. For what if the daughter, through motives of filial reverence, should agree with her father to be absent, why should we not hold that an action should not be granted him? But if the father is such a person that his daughter ought by all means to give her consent, that is to say, is a man of an excellent reputation, and his daughter is a woman of fickle character, or very young, or too much under the influence of an undeserving husband; it must be said that the Prætor should rather favor the father and grant him an action. 7Where either a husband or a wife becomes insane during marriage, let us consider what should be done. And, in the first place it should be observed that there is no doubt whatever that the one who is attacked by insanity cannot send notice of repudiation to the other, for the reason that he or she is not in possession of their senses. It must, however, be considered whether the woman should be repudiated under such circumstances. If, indeed, the insanity has lucid intervals, or if the affliction is perpetual but still endurable by those associated with the woman, then the marriage ought by no means to be dissolved. And where the party who is aware of this fact, and of sound mind, gives notice of repudiation to the other who is insane, he will, as we have stated, be to blame for the dissolution of the marriage; for what is so benevolent as for the husband or the wife to share in the accidental misfortunes of the other? If, however, the insanity is so violent, ferocious, and dangerous that no hope of recovery exists, and it causes terror to the attendants; then, if the other party desires to annul the marriage either on account of cruelty which accompanies the insanity, or because he has no children and is tempted by the desire of having offspring, the said party, being of sound mind, will be permitted to notify the other, who is insane, of repudiation; so that the marriage may be dissolved without reproach attaching to either, and neither party will suffer any damage. 8Where, however, the woman is affected with the most violent form of insanity, and the husband, through crafty motives, is unwilling to annul the marriage, but treats the unfortunate condition of his wife with scorn, and shows no sympathy for her, and it is perfectly evident that he does not give her proper care, and makes a wrongful use of her dowry; then, either the curator of the insane woman or her relatives have the right to go into court in order to require the husband to support her, furnish her with provisions, provide her with medicine, and omit nothing which a husband should do for his wife, according to the amount of the dowry which he received. If, however, it is evident that he is about to squander the dowry, and not enjoy it as a man ought to do, then the dowry shall be sequestered, and enough taken out of it for the maintenance of the wife and her slaves, and all dotal agreements made between the parties at the time of the marriage shall remain in their former condition, and be dependent upon the recovery of the wife, or the death of either of the parties. 9Moreover, the father of the woman who has become insane can legally begin an action for the restoration of the dowry to himself, or to his daughter; for although she, being insane, cannot give notice of repudiation, it is certain that her father can do so. 10If after the marriage has been dissolved, the father should become insane, his curator can bring suit to recover the dowry with the consent of his daughter; or, where there is no curator, his daughter will be allowed to bring it, but she must give security for the ratification of her act. 11It must also be held that, where the father is taken captive by the enemy, an action to recover the dowry should be granted to the daughter. 12Let us now pass to another subject, and inquire against whom the action on dowry will lie. It is clear that it will lie against the husband himself, whether the dowry was given to him, or to another with his consent, whether the latter was subject to his control or not. Where, however, the husband is subject to paternal authority, and the dowry is given to his father-in-law, then suit must be brought against the father-in-law. It is evident that if it was given to the son, or has been given by the direction of his father-in-law, the latter will still be absolutely liable. But if it is given to the son, but not by the direction of the father, Sabinus and Cassius gave it as their opinion that an action could, nevertheless, be brought against the father, because the dowry is held to have come into the hands of him who has the peculium. It will, however, be sufficient for judgment to be rendered against him for the amount of the peculium, or to the extent to which the property of the father has been benefited. If, however, the dowry has been given to the father-in-law, he cannot institute proceedings against the husband unless the latter becomes the heir of the father. 13Ad Dig. 24,3,22,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 500, Note 1.When a woman makes a mistake as to the condition of her husband, and thinks that he is a freeman while, in fact, he is a slave, some preference must be shown her with respect to the property of her husband; for example, if there are other creditors, she must be preferred in case an action de peculio is brought, and if the slave owes anything to his master, the woman shall not be preferred to him, except with reference to what was either given by way of dowry, or purchased with money forming part of it, since property of this kind is dotal.

Ulpianus, On the Edict, Book XXXIII. If, during the existence of the marriage, the wife desires to institute proceedings on account of the impending insolvency of her husband, what time must we fix for her to claim the dowry? It is settled that it can be demanded from the time when it is perfectly apparent that the pecuniary resources of the husband are not sufficient for the delivery of the dowry. 1If the wife should institute proceedings after her husband has been disinherited, the better opinion is that the demand for the dowry should begin to date from the time that the heir entered upon the estate of the father of her husband. 2Whenever security should be given to a wife for the payment of her dowry, after a certain date, if her husband cannot furnish security, then the advantage arising from the enjoyment of the dowry during the intermediate time having been deducted, judgment should be rendered against him for the remainder. If, however, the husband should refuse to give security when he is able to do so; Mela says judgment should be rendered against him for the entire amount, and no account should be taken of any deduction growing out of the benefit obtained during the intermediate time. It is, therefore, a part of the duty of the judge to release the husband if security is furnished, or to render judgment against him, after having taken the set-off into consideration. This, indeed, is the practice at present, nor is a woman permitted to say that she prefers to suffer delay rather than submit to a reduction in the amount to be paid. 3Whether the dowry is at the risk of the husband or the wife, the husband must, nevertheless, pay it within the time established by law. 4Where a husband, with the consent of his wife, manumits slaves forming a part of the dowry, even if his wife intended to donate the slaves to him, he will not be liable for the expenses incurred in giving them their freedom; but if this was a business transaction carried on between them, he will be compelled by the court to give security to restore to his wife anything which comes into his hands from the property or the obligations of the freedmen. 5If the husband should be cruel to the dotal slaves, let us see whether an action can be brought against him on this account. And, in fact, if he is only cruel to the slaves of his wife, it is settled that he will be liable on this account; but if he is by nature cruel to his own slaves, it must be said that his immoderate severity should be checked by an order of court; for although a wife cannot require from her husband greater diligence than he employs in his own affairs, still, such cruelty as is reprehensible when exhibited with reference to his own property must be restrained with reference to that of others, that is to say, with respect to the slaves composing the dowry. 6Where a wife lends property belonging to her husband, and it is lost, it should be considered whether she must permit this to be set off against her dowry; and I think that if her husband forbade her to lend it, the deduction should at once be made; but if he did not permit her to do so, the judge can grant her a reasonable time to return it, if she gives security. 7When a portion of the property of a wife should be confiscated, she will have a right of action to recover the remainder of her dowry. I also hold that if a portion of the dowry has been confiscated alter issue has been joined, it will be sufficient for the judge to issue an order compelling the husband to restore the remainder. If, however, the entire dowry has been confiscated, the right of action will be extinguished.

Ulpianus, On the Edict, Book XXXIII. If a husband should manumit dotal slaves with the consent of his wife, it is just as if she intended to donate them to him, and he will not be liable to any claim on account of having given them their freedom.

Ulpianus, On the Edict, Book XXXIII. Marcellus stated in the Eighth Book of the Digest that whether a husband drove his wife, or a wife her husband, from the house, and removed the property, either would be liable to an action for the recovery of property wrongfully appropriated. 1Where anyone institutes proceedings for the recovery of property wrongfully appropriated, if he prefers to tender an oath, his adversary will be compelled to swear that nothing was appropriated at the time of the divorce; provided whoever tenders the oath himself or herself first takes the oath de calumnia. 2The husband, as well as the wife, is compelled to take the oath with reference to property wrongfully appropriated. But the father of him or her who appropriated the property is not obliged to be sworn, as it would be unjust for anyone to take an oath relating to the act of another. That party, therefore, is compelled to take the oath who is said to have appropriated the property, and hence the heir of him or her who is said to have wrongfully appropriated it is not compelled to be sworn. 3Where anyone desires to tender back the oath which has been tendered him, it has been decided that the Prætor shall not permit this to be done.

Ulpianus, On the Edict, Book XXXIII. Therefore, Labeo states that a woman is not permitted to tender back an oath; and the Edict of the Prætor is held to establish this.

The Same, On the Edict, Book XXXIII. The Divine Pius stated in a Rescript with reference to a ward whose guardian was judicially decided to be a slave, that the owner of the latter was not entitled to the privilege of deducting what was due to him from property which the slave had purchased with the money of the ward. This rule also should be observed in the case of a curator.

Ulpianus, On the Edict, Book XXXIII. Provided the fire did not take place through the negligence of the heir.

Ulpianus, On the Edict, Book XXXIII. If it should be proved that a woman has employed force upon her abdomen for the purpose of producing abortion, the Governor of the province shall send her into exile.

Ulpianus, On the Edict, Book XXXIII. Under five laws, the dowry of a convicted woman is confiscated, namely, for high treason, public violence, parricide, poisoning, and assassination.

Ulpianus, On the Edict, Book XXXIII. If, however, the woman is punished with death under some other law which does not confiscate her dowry, for the reason that she first becomes a penal slave, it is true that her dowry passes to her husband just as if she were dead. 1Marcellus says that if a daughter under paternal control is deported, her marriage is not dissolved by the mere fact of her deportation, and this opinion is correct; for, as the woman remains free, nothing prevents the husband from retaining his marital affection, or the woman from retaining her affection as a wife. Therefore, if the woman has the intention of leaving her husband, Marcellus says that the father can then institute proceedings to recover her dowry. If, however, she is the mother of a family, and is deported during the existence of the marriage, the dowry will remain in the hands of the husband; but if the marriage is subsequently dissolved, she can bring her action, just as if, through considerations of humanity, the right to do so had recently been acquired.

The Same, On the Edict, Book XXXIII. If the husband has a castrense peculium, judgment will be rendered against him to the extent of his means; for he will be compelled to make payment out of his peculium, even to those who are not castrensian creditors.